This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

ADAM SMITH ALBION

Adam Smith Albion is an analyst of the Middle East and Central Asia. He is a director of the Middle East Leadership Academy (MELA), and director emeritus of the Central Eurasia Leadership Academy (CELA).

INTRODUCTION

Turkey is the crossroads country par excellence. Its geographical location spanning Europe and Asia aptly symbolizes a country that has historically looked to the West for its institutional models – ever since the Turkish republic was established in 1923 and was launched on a crash modernization program by its founder, Mustafa Kemal Atatürk – yet has never lost its essential character as a culturally conservative, Muslim nation. The current government embodies that character. The Justice and Development Party (AKP), led by Prime Minister Recep Tayyip Erdogan, was elected in 2002 and reelected in 2007 with pluralities of votes that translated into large majorities of seats thanks to a vagary of the political system. Erdogan heads a mildly Islamic government with a voter base in the Anatolian heartland and political instincts that put it at odds with the pro-secular elites who have set the tone of Turkish politics for decades.

Turkey's reform efforts have ebbed and flowed but have usually been headed in the direction of improved governance. Its acceptance as an official candidate by the European Union (EU) in 1999 provided fresh impetus to make legal and institutional reforms harmonizing with EU requirements. Erdogan's first administration distinguished itself with an impressive reform record, but the pace has slowed considerably as European countries have shown themselves increasingly cool toward Turkey's membership prospects.

Progress on reforms has also been dogged by fundamental contradictions that were built into the state that Atatürk created or have developed over time. Tensions around three longstanding problems in particular have come to a head in recent years. The first is the adherence to an ideology of homogenous nationhood in a multiethnic state. The second is the role of the military as the custodian of democracy. The third is rigid state secularism in a country where much of the population is pious.

Modern Turkey was forged from remnants of the shattered Ottoman Empire. That experience of dismemberment moved the republic's founders to enshrine Turkish nationalism and territorial integrity as non-negotiable elements of the new dispensation.

These principles successfully consolidated the state but have restricted basic freedoms of the country's minority populations, especially millions of Kurds demanding cultural rights and full equality. A guerilla war between Turkish forces and Kurdish separatists in the southeast of the country has gone on, with intermittent ceasefires, for a quarter century and claimed tens of thousands of lives. In 2009 the AKP government announced a "democratic opening" aimed at expanding Kurds' rights and ending the insurgency. After an encouraging start the initiative has gradually petered out.

The indispensible role of Atatürk (a military commander) and the army in creating the republic and then securing its existence has given the military an elevated status in Turkey. The constitution makes the armed forces ultimately responsible for defending Turkish democracy. To that end, they have staged three coups against elected civilian governments – in 1960, 1971, and 1980, along with a fourth government pressured out of power in 1997 – when they thought that political stability and the constitutional order were threatened. In each case, the soldiers gave up power and reinstated democracy relatively quickly. Nevertheless, the military's perception that it has the right to influence the political process has long been controversial. Erdogan's government has taken unprecedented steps to clip the military's wings, investigating hundreds of top-ranking officers for allegedly plotting acts of violence as part of a secret organization called Ergenekon. The aim of taming the military has been achieved, although it is not clear that justice has always been done – indeed, it remains unproven that Ergenekon even exists.

Secularism is a core principle of the Turkish republic, fiercely guarded by both the military and the judiciary. Within both institutions, the AKP is distrusted because of its sociocultural orientation and political heritage: it is an Islamic-conservative (although economically liberal) party that emerged from former political Islamist parties. The AKP defines itself as "conservative democrat." Nevertheless, the perception that it has a religious orientation has made it the object of dire suspicions that its eventual goal is to overturn Turkey's secular democracy. Attempts by the government to ease restrictions on wearing the Islamic headscarf in state organizations have been seen as first steps on a slippery slope towards Islamization of the country. In 2008 the Constitutional Court almost shut down the AKP on charges of violating the secular character of the state. Thus the courts have turned into an ideological battlefield between partisans of an inflexible and interventionist version of secularism, who see themselves as loyal to the vision of Atatürk, and the government and its supporters, who think that such inflexible secularism discriminates against the pious.

In September 2010, a package of 26 amendments to the constitution was put to a public referendum and passed with 58 percent in favor. The current constitution is an adapted version of one dating from 1982, drafted by the military-led government of the time: there is general agreement in Turkey that it needs a major overhaul or should be rewritten altogether. The changes approved in the recent referendum include measures to restructure the justice system, expand labor rights, promote equality for women and the disabled, and establish an ombudsman's office. As of June 2011, implementation of the package remains in the early phases.

[Editor's Note: The AKP secured a third term in power in parliamentary elections on June 12, 2011, winning 49.9 percent of the vote, which translated into 326 out of 550 seats in the legislature.]

ACCOUNTABILITY AND PUBLIC VOICE

The Republic of Turkey is a multiparty parliamentary democracy. The head of state is the president, who is directly elected by universal suffrage and may serve a maximum of two consecutive five-year terms.1 The president is not formally involved in the policymaking process. National government is led by the prime minister. The unicameral parliament (Turkish Grand National Assembly) is composed of 550 deputies who are elected to a four-year term (reduced from five years following changes in the law in 2010). Seats are allotted by proportional representation, with the crucial restriction that a party must win at least 10 percent of the votes cast nationwide to enter parliament. While elections in Turkey are competitive and conducted in a free and fair manner, this 10 percent threshold – the highest in any Council of Europe member state – has led to significant distortions in electoral outcomes. In the July 2007 election only three parties surmounted the 10 percent barrier; as a result, Prime Minister Erdogan's AKP, which was reelected with 46.7 percent of the vote, netted 62 percent of the seats in the National Assembly.

The rules particularly disadvantage pro-Kurdish politicians. They have managed to circumvent the threshold by running as independents and then coalescing as a parliamentary group once elected. However, the absence of an official political party deprives pro-Kurdish politicians of regular, significant financial assistance from the state budget that is allotted to parties that clear the 10 percent hurdle.

[Editor's Note: Three parties won seats in the June 2011 elections. The AKP secured 326 seats by winning 49.9 percent of the vote, the Republican People's Party (CHP) took 135 seats with 25.9 percent, and the Nationalist Movement Party (MHP) took 53 seats with 13 percent. The remaining seats were taken by independents.]

Turkey's democracy is impaired by the internal mechanics of its major political parties. The parties are commanded by leaders who, in conjunction with a close circle of bosses around them, make all the important decisions about party policies and appointments. This modus operandi is primarily a cultural rather than an institutional issue. However, the personal dominance of party heads is coupled with inadequate state oversight of parties' finances, a combination that is replete with opportunities for cronyism and graft. Campaign finance laws require that all individual and corporate donations be recorded, but in practice the registration of gifts is poorly monitored.2

Tighter legislation to improve transparency in campaign financing was passed in March 2010. Incumbent politicians, including the AKP, have a history of regularly abusing state resources during campaigns. Meanwhile, party funds are not subject to any rigorous controls since the Constitutional Court merely reviews, and is not empowered to verify, the annual balance sheets presented to it by the parties themselves.

Turkey's civil service functions reasonably well but is overly centralized. Public administration would benefit from more transparency in the procedures determining appointments and promotions to ensure they are merit-based. The bureaucracy needs better regulation to enforce common standards and make sure that rules are implemented uniformly across the system.3

The separation of powers has become one of the most contentious issues of Turkish political life in recent years. Nominally the debate is over the role of the judiciary and the military as the guardians of secularism. Both institutions have intervened decisively in politics at various points in Turkey's history, and both have been at loggerheads with the AKP government for its supposed attempts to undermine the secular underpinnings of the republic. In its political clashes with the military the AKP has emerged the winner, to a point where the army today finds its reputation and influence over political affairs much reduced. Meanwhile, the judiciary's structure has been overhauled by constitutional amendments adopted in September 2010. Whether the changes will make the judiciary more democratic and accountable (as the government contends) or, on the contrary, will render it more pliable to political manipulation, is a question over which legal commentators and the Turkish public itself are much divided (see Rule of Law). One area where the courts have been used improperly for political ends with the tacit support of the government is in shutting down political parties. In December 2009 the Constitutional Court voted unanimously to ban the pro-Kurdish Democratic Society Party (DTP) on the grounds that it promoted ethnic separatism and maintained links to the outlawed Kurdistan Workers' Party (PKK). Simultaneously, 37 DTP leaders were banned from politics, igniting days of rioting in Istanbul and elsewhere. The DTP is the fifth pro-Kurdish party to be closed by the courts in the last decade and a half.4 Ironically, the AKP itself narrowly avoided being shut down by the Constitutional Court in 2008 on an indictment, filed by the chief prosecutor of the Supreme Court of Appeals, that the party had an Islamist agenda to undermine the secular foundations of the state.

Turkey has a plethora of civic associations and nongovernmental organizations (NGOs) – 80,000 registered associations and several hundred unions and chambers by some estimates – the vast majority of which are allowed to function unhindered.5 That said, the red tape involved in obtaining permission to operate and raise funds can be onerous. Civil society groups have benefited from the 2008 Foundations Law which, among other things, permits community foundations to receive foreign funding. However, there is scant evidence that NGOs have much impact on the policymaking process, despite promises by the AKP to pay more heed to the public voice in its decision making. The government did an inadequate job of reaching out to NGOs in the process of formulating and discussing the constitutional amendments that were put to the public in the September 2010 referendum. It even sidelined the country's most influential NGO, the Association of Turkish Businessmen and Industrialists (TÜSIAD). When TÜSIAD and other powerful organizations declined to take a public position on the referendum, Erdogan castigated them publicly for refusing to give him positive support.6

Despite some notable advances in freedom of expression in recent years, the overall trend in Turkey has been negative. Turkish mass media is lively but not of high quality. It suffers from the fact that Turkey's major newspapers and television channels belong to giant holding companies, which tend to regard their media operations as instruments to influence the authorities and advance their own business interests. On two of the litmus test issues for freedom of expression in Turkey, the Armenian and Kurdish issues, the government has sent mixed messages. On the one hand, it permitted in April 2010, for the first time, demonstrations in Istanbul in commemoration of the 1915 mass killings and deportation of Armenians by Turks (regarded by many as genocide). Yet writers and broadcasters have continued to face sanctions for raising the subject. Similarly, Turkey crossed an historic line in 2009 with a government directive removing all remaining restrictions on broadcasting in minority languages, particularly Kurdish. Nevertheless, Kurdish-language editors and journalists are still targeted for their alleged sympathies for separatists.7 In 2010 Reporters without Borders ranked Turkey 138th out of 178 countries for press freedom, its lowest score in ten years.8

Freedom of speech and independence of the media are guaranteed by the Turkish constitution. However, this guarantee is hedged with restrictions, of which the two most damaging are Article 301 of the Turkish penal code and the country's Anti-Terrorism Law. Article 301 criminalizes "insults to the Turkish nation" – typically meaning any allusions to the 1915 killings of Armenians but also interpretable as criticism of the state and state institutions such as the police and armed forces. Article 301 was amended in April 2008, but the changes were minor and cosmetic.9 The Anti-Terrorism Law punishes any form of "propaganda for a terrorist organization" with up to five years in prison and has been used to target journalists and suppress newspapers for reporting on sensitive Kurdish issues. Discussing Kurdish rights to self-determination, quoting a communiqué by the PKK, and interviewing former PKK leaders have all been recent causes for prosecution under the Anti-Terrorism Law.10 In 2009-10 the Kurdish-language daily Azadiya Welat was repeatedly banned, while two of its chief editors received sentences of 166 years and 22 years for publishing material that allegedly supported the PKK's goals of separatism and terrorism.11 As of late 2010, more than 40 journalists were in jail and some 700 awaited trial for violating these and other vaguely-worded laws against undermining the integrity and fundamental interests of the nation.12 The government has reneged on pledges to reform the country's restrictive media law as well as over two dozen provisions in the penal code used to harass journalists (such as Article 125, which makes defamation a crime). In addition to high-profile trials leading to criminal convictions, there is a rising trend of harassment, arbitrary arrests and physical attacks on journalists that contribute to the worsening climate for free speech in the country.

The government has contributed to a climate of intimidation and self-censorship through its handling of the so-called Ergenekon case, a massive ongoing investigation begun in 2006 into an alleged clandestine military-backed organization plotting a series of assassinations and terrorist acts. Progovernment media outlets have been responsible at times for uncritical coverage of discredited evidence, published accusations by anonymous informants, and smeared critics of the proceedings.13 Meanwhile, prosecutors have launched over 4,000 investigations against journalists for their reporting on the Ergenekon case.14 Yet no strong evidence has been produced that the organization even exists. The thousands of pages of indictments contain confusions over facts and dates, and include internal contradictions and improbable assertions, leading some commentators to speculate that at least some of the papers have been fabricated.

Erdogan has become increasingly intolerant of political criticism since his reelection in 2007 and made aggressive moves both to build a loyalist media and to eliminate media opponents. An early manifestation occurred when the country's second-largest media group, Sabah/ATV, was seized by the state under murky circumstances and auctioned off in 2008 to a holding group run by Erdogan's son in law. However, the harshest blow to media pluralism was struck in 2009, when Turkey's biggest media conglomerate, the Dogan Media Group (DMG) – a vocal opponent of the AKP through its best-selling newspapers and popular TV stations – was hit with fines totaling $3 billion for alleged tax evasion. Earlier, Erdogan had publicly called on his supporters to boycott DMG outlets after its journalists reported on a corruption case in Germany that implicated top officials from the prime minister's circle, including his appointee to lead the Supreme Council of Radio and Television (RTÜK). The case revealed that donations to a Turkish charity in Europe had been embezzled and illegally diverted to fund Turkey's Kanal 7, a progovernment TV station, and indicated systematic efforts by the AKP to pump money, sometimes illegally, into progovernment media outlets. While Erdogan has denied any political motive behind the tax penalties against DMG, commentators have warned that the assault has further entrenched self-censorship among editors and journalists. Moreover, there are worries that if DMG is obliged to sell its major media assets to a pro-AKP conglomerate (as seems likely) the government will have secured hegemony over all the most important media holdings in the country.15

Turkey has censored more than 5,000 websites since the passage in 2007 of Law 5651 on the internet, which permits censorship of sites promoting various crimes, including pedophilia, suicide, drug use, gambling, and insulting Atatürk. YouTube was officially blocked from May 2008 to November 2010 because of a dozen videos posted on the site that public prosecutors deemed disrespectful of Atatürk. Internet legislation has also been used to block various Google services, discussions of Kurdish and Armenian issues, gay sites, atheist sites, and criticism of the military. The EU and other groups have reproached Turkey for violating rights to freedom of information with its internet policies.16

CIVIL LIBERTIES

Turkey's record on preventing and punishing torture has improved, albeit from a low baseline, with a decrease in the number of reports of ill-treatment by state officials in detention centers. Training programs have been held for law enforcement officials (50,000 received human rights training in 2008-09) as well as for judicial and medical personnel on looking into torture cases.17 Turkey has committed to ratify the Optional Protocol to the United Nations Convention against Torture. However, serious problems remain. The courts are "notoriously lenient" towards security officials accused of torture, who are routinely prosecuted on lesser charges such as excessive use of force that yield lighter sentences.18 Although the criminal code provides for the independent investigation of human rights violations by judicial police supervised by a prosecutor, in reality police often hold extended in-house investigations into misconduct by their fellow officers, giving rise to doubts about the impartiality and thoroughness of their inquiries. The majority of such investigations have either absolved officers of responsibility or resulted in suspended sentences.19 In many cases, victims of abuse at the hands of security forces refrain from filing complaints for fear of being slapped with countercharges.20 However, in a groundbreaking verdict in June 2010, nine prison and police officials received heavy sentences for torturing to death Engin Çeber, an activist with the Rights and Freedoms Association, who had been arrested during a peaceful protest against police brutality. For the first time, a senior prison official was found guilty of torture perpetrated by the guards under his command. A further 10 officials were convicted for complicity in Çeber's death and the torture of two of his associates. The justice minister at the time made an unprecedented public apology to Çeber's family.21

In other areas of policing, a culture of impunity has spread with a rash of police shootings since 2007, when legal amendments expanded officers' authority and discretion to use lethal weapons while making arrests. Unarmed demonstrators and fleeing suspects who allegedly failed to obey stop warnings have been shot, sometimes fatally. There were 48 reported cases of fatal shootings by Turkish law enforcement officers in 2009 alone.22 Convictions for police violence have rarely led to prison sentences. Arrest of individuals without proper justification is also a longstanding problem, but has gained more public attention recently because of the waves of arrests connected with the Ergenekon case. The number of protestors, activists, or journalists who have been arbitrarily detained by the police has led to suggestions that arrest itself has become a form of punishment without trial in Turkey.

Turkey has taken steps to improve prison conditions and detention regulations. In the case of Turkey's most controversial prisoner, Abdullah Öcalan, serving a life sentence for his role as former leader of the Kurdish guerilla movement, European monitors recently found his situation slightly improved.23 However, Turkish penitentiaries are chronically overcrowded, and the high proportion of prisoners remanded in pretrial detention (50 percent of the country's prisoners are awaiting either trial or a verdict) has been acknowledged by the government to be unacceptable.24 Children arrested for allegedly participating in pro-Kurdish demonstrations have often been held in adult prisons while awaiting trial for up to three or six months.25

The trials related to the murder of the Turkish-Armenian journalist Hrant Dink, who was gunned down in 2007, have become a touchstone case of whether Turkey protects its citizens from nonstate violence. Dink had complained to the police of death threats from ultranationalists for his views on the Armenian killings. Investigations have revealed that the police had prior knowledge of the plan to murder him but neglected to act. In September 2010 the European Court of Human Rights (ECHR) ruled that Turkey had failed in its obligation to protect Dink's right to life and ordered compensation to be paid to his family.26 The trials of the gunman and seven gendarmes charged with professional negligence are continuing.

Turkey has made positive strides in creating independent human rights institutions, including a Human Rights Board, an independent police complaints mechanism, and an equality and nondiscrimination commission, but all remain at the draft law stage.27 The constitution has been amended to clear the way for the establishment of an ombudsman's office. Although citizens' options for petition and redress are improving, the sheer number of Turkish cases still being referred to the ECHR, many of them concerning the right to a fair trial, is an indication that domestic avenues are currently inadequate.28

There is an implementation gap between Turkey's legal framework, which strongly enshrines gender equality, and a patriarchal culture that subordinates and discriminates against women. The government has made efforts to promote women's rights through awareness campaigns and training for officials; the establishment of a Parliamentary Commission on Equal Opportunities for Women and Men that investigates, for example, forced early marriages and domestic violence against women; and a planned national board for monitoring and coordinating matters related to women's employment.29 In September 2010, the constitution was amended to permit the adoption of positive discrimination measures for women.

Nevertheless, Turkish women remain disadvantaged and disempowered in private and public life. Thirty-nine percent of women have reportedly been victims of domestic violence.30 There is evidence of a recent increase in honor killings, whereby women are killed by male relatives for alleged sexual transgressions bringing dishonor on their families. The law has been toughened to ensure that the penalty for honor killings can no longer be reduced for "unjust provocation," but these crimes are still not explicitly treated in the penal code as aggravated homicide.31 In the sphere of education, Turkey has eliminated gender inequality in primary education, but has made less progress at higher levels, particularly in rural provinces where reluctance to enroll girls in school is attributed to their household duties and stereotyped notions of "family values."32 While women acquired the right to vote and run for office in 1934, a mere 9 percent of parliamentarians, and 12.5 percent of senior state administrators, are female.33 Despite government-sponsored training and incentives to work, only 22 percent of women are employed in the formal workforce.34 Most of the women working in Turkey are engaged in agriculture, laboring for their families without pay or entitlements.

Turkey is a destination and transit country for trafficking in women and children for prostitution and (to a lesser extent) forced labor. The government has taken serious steps to combat trafficking, prescribing new penalties and aggressively prosecuting traffickers, and adopting a national action plan to rehabilitate and provide shelters for trafficked persons. However, insufficient human and financial resources have held back implementation of parts of the plan.35

Turkey's definition of minorities is not in line with international standards, recognizing only three non-Muslim minorities it pledged to protect under the Lausanne Peace Treaty of 1923: Jews (numbering about 23,000), Greek Orthodox Christians (2,500) and Armenian Orthodox Christians (60,000).36 Ethnic, racial, linguistic, sexual, or other minority groups are not recognized as such and consequently do not enjoy any special legal protections; in theory their rights are secured by overarching constitutional safeguards prohibiting discrimination and hate crimes and guaranteeing freedom of expression and association. In practice, Turkey has historically pursued policies of repression and assimilation towards its minorities, especially against the Kurdish population, which currently numbers some 15 million people, in efforts to head off separatism and anchor the state in Atatürk's ideology of Turkishness. Although many Kurds are well integrated into Turkish society, as an ethnic minority they have seen their rights to express their cultural identity sharply curtailed. They have suffered violence and institutionalized rights abuses by Turkish security forces over the course of two decades of fighting insurgencies in the southeast of the country that have claimed over 35,000 lives. However in summer 2009, in a departure from traditional state policies, the government announced a "democratic opening" addressed primarily at the Kurdish minority. This ended restrictions on broadcasting in minority languages (see Accountability and Public Voice) and briefly led to unprecedented freedom to debate the Kurdish question. The political experiment foundered when the DTP was shut down at the end of the year, but by autumn 2010 there were signs of its cautious revival.

While homosexuality is not technically illegal in Turkey, the state is intolerant of lesbian, gay, bisexual, and transgender (LGBT) people, who have faced discrimination at work and obstacles in forming associations. Most of the LGBT groups registered in the country have been targeted at one time or another with closure cases that typically rely on laws prohibiting "offences against public morality" and "public exhibitionism," which have also been used to ban gay pride marches.37 At least nine transgender people have been murdered in Turkey since the beginning of 2009. In October 2010 police officers arbitrarily detained and beat up five transgender rights activists in Ankara.38

Government measures to improve the employment prospects of persons with disabilities include a constitutional amendment permitting positive discrimination in their favor, and allowing more of the disabled to work in public institutions by lifting budget-related limitations on recruiting staff. That said, disabled people's access to education, health, social and public services are still "critical issues" for Turkey.39

Freedom of belief and worship is constitutionally protected and generally respected in Turkey, the population of which is overwhelmingly Muslim (99 percent according to official figures). The Directorate of Religious Affairs (Diyanet), a state organ reporting to the prime minister's office, oversees the country's mosques and employs its imams, who are civil servants and are sometimes told by the government what to preach in their sermons. Religious and moral instruction is compulsory in public schools. Notwithstanding the government's control over religious affairs and education, secularism – the principle of separating state and religion – has been the bedrock of the Turkish state's identity since the republic was founded. The constitution upholds secularism, and to that end overt expressions of religious belief are banned in government offices and other state-run institutions. But there have always been tensions involved in the premise and application of inflexible secularism in a country with a large pious population, and the fracture lines have become increasingly visible since the democratic election of the AKP's mildly Islamic government. Those tensions have come to a head over the issue of Turkish women's right to wear Islamic headscarves in universities;40 the ban has effectively forced many women to choose between their faith and education.

After nearly precipitating a political crisis in 2008 by seeking to eliminate the ban – feared by secularists as a move towards the Islamization of the country – the AKP has backed away from the issue, but the cause is effectively won: the Higher Education Board now turns a blind eye and in late 2010 instructed universities not to expel students wearing headscarves.41

Similarly, the government has eased restrictions on the operation of medreses (theological schools), Sufi lodges, and other unofficial Muslim organizations whose existence, strictly speaking, is illegal.42 However, some religious communities have reported a pattern of discrimination and administrative uncertainty, notably the Alevis, heterodox Muslim believers, of whom there are an estimated 15-20 million in Turkey. Alevis have complained that the state does not accord any legal status to their cem houses (places of gathering) as houses of worship, referring to them as cultural centers, and creates obstacles to their establishment.43 Furthermore, the Alevis are not represented in the Diyanet, which is for Sunni Muslims only.

Freedom of assembly and association is constitutionally protected. A large number of civil society organizations operate in the country, although some have faced harassment and prosecutions, notably LGBT associations and some human rights watchdogs. Public gatherings in 2010 to mark the Kurdish New Year, the Armenian killings, and international labor day were staged without incident.44 Other demonstrations do not pass so peacefully, however, with police using excessive force at various times to break up rallies by laid-off workers, trade unionists, students, and Kurdish protesters.45

Constitutional amendments have broadened trade union rights. Prohibitions were lifted in September 2010 on general strikes and other forms of resistance. Civil servants and public employees were granted the right to collective bargaining and to judicial review of disciplinary decisions made against them. Civil servants do not have the right to go on strike, however. Overall, the influence of trade unions in Turkey has waned in recent years in tandem with a process of de-unionization in some public and private workplaces, although progovernment unionization has been promoted.46 In addition, labor watchdogs have noted ongoing problems with dismissals and legal charges against trade unionists.47

RULE OF LAW

Turkey's judiciary, particularly the Constitutional Court, has traditionally regarded itself as the guardian of the integrity of the state and a bastion of the secular political establishment. It has a track record of judgments that have skirted the letter of the law in favor of upholding secular orthodoxy. As such, the judiciary's relationship with the religiously conservative AKP party has been strained. In 2008 the Constitutional Court nearly shut the party down for allegedly eroding secularism. Against that background, the package of constitutional amendments adopted in September 2010 reorganizes the judicial system in ways that have sparked fierce controversy over whether the government is driven more by zeal for reform or by revenge – whether the changes in practice will promote democracy and accountability or strengthen the prime minister's power over the courts. On balance the reforms seem to represent democratic progress, although much depends on how they are implemented, and whether the gains will be underpinned with further reforms in the training and recruitment of judges and prosecutors and improved court procedures.

Two key judicial bodies have been restructured: the Constitutional Court and the High Council of Judges and Prosecutors (HSYK). The number of members of the Constitutional Court was increased from 11 to 17, of which 4 are directly appointed by the president, 10 are chosen by the president from a slate of nominees, and 3 are elected by parliament by a simple majority vote. Although the slate of nominees is selected by a wide set of judicial bodies and the Higher Education Council, there is concern that the government has strong influence over at least some of those agencies. Moreover, with both the presidency and the legislature presently under AKP control, Erdogan's critics have warned that the separation of powers is under threat and the prime minister has a free hand to pack the court with his political supporters. There are countervailing views that these fears are overblown and that, in practice, the details of the mechanisms to elect nominees will forestall such an outcome.48

The HSYK, which is responsible for appointing judges and prosecutors across the country, has similarly been expanded from 5 to 22 permanent members. Dismissal decisions by the HSYK are now open to judicial review, and the body will be more professionalized by having its own general secretariat. However, there remains room for government interference in the fact that the Minister of Justice continues to serve as president of the HSYK (albeit with reduced powers) and appoints the head of the Secretariat.

The political impartiality of the HSYK is a source of concern. It has been much criticized by legal monitors in the past for the cozy, closed system whereby it chose the higher judiciary staff, who in turn nominated the members of the HSYK. In 2006 the High Council made an unwarranted intervention into an active case when it dismissed the prosecutor who prepared an indictment against three members of Turkish military intelligence suspected of a grenade attack on a Kurdish bookshop in 2005. In another strike against prosecutorial independence, Ilhan Cihaner, a public prosecutor in eastern Turkey, was removed from his post and arrested in February 2010, accused of being a member of the Ergenekon network, after reportedly ignoring warnings from the Ministry of Justice to abandon his inquiries into illegal activities involving Islamic networks with ties to the AKP. In this instance the HSYK responded to the government in tit-for-tat fashion by firing four public prosecutors seen to be sympathetic to the AKP.49

The law guarantees the presumption of innocence until proven guilty in court and defendants have the right to an attorney. Yet there are indications that many detainees have gone without legal counsel and were unaware they had the right to a court-appointed lawyer. Access to free legal aid is limited, notably in the Kurdish areas of the country, and no court-appointed counsels were made available in Istanbul for a period of nine months in 2009-10 as the Istanbul bar association was boycotting the free legal aid scheme.50 The quality of judges can be low: candidates to the bench require a bachelor's degree (not necessarily in law) followed by two years' training at the Justice Academy. According to Transparency International, judicial appointments in Turkey can depend on "clientelist ties, not legal qualifications."51

The president, cabinet ministers, and parliamentary deputies enjoy legal immunity from prosecution according to the constitution. Erdogan has reneged on a pre-election pledge to end immunity. Yet many Kurdish MPs have had their immunity stripped and been taken to court on the grounds that crimes against "the indivisible integrity of the state" (Article 41 of the constitution) warrant the exception. Attempts to prosecute state officials after leaving office for alleged misdeeds have foundered on the statute of limitations.

Alongside the judiciary, the military has acted as the ultimate guarantor of Turkey's secularist ideology and state order since the creation of the republic, ousting governments four times in the last half century in the name of protecting those fundamental values, although each time it returned power to civilian authorities relatively quickly. More generally, the military has exerted influence over political processes through the clandestine network of intelligence services, internal security forces, and police collectively known in Turkey as the "deep state." However, the AKP has mounted an unprecedented challenge to the autonomy and prestige of Turkey's once untouchable military. Although it remains the most respected institution in the country, the reputation of the military has plummeted – and the power of the deep state with it – with the barrage of disclosures about senior officers' supposed involvement in terrorist conspiracies as members of the alleged Ergenekon organization.52 The government has asserted its authority over military promotions and jailed generals and admirals accused of plotting against the state.

A constitutional amendment in September 2010 removed cases dealing with state security from the jurisdiction of military courts and transferred them to the civilian courts. The military justice system is now limited to handling military offenses and explicitly forbidden to try civilians. Furthermore, decisions of the Supreme Military Council (YAS) are now open to appeal. Sending a message that the days of the army's impunity are over, the government abolished immunity from prosecution for the commanders behind the 1980 military coup d'état, although the move is symbolic only since the statute of limitations has passed. In February 2010, the government cancelled a secret protocol that permitted military operations to be conducted without the consent of civilian authorities.53 These moves have improved civilian control over Turkey's security forces. On the other hand, details of the defense budget remain murky and are not subject to proper parliamentary oversight. Moreover, two military judges continue to sit on the Constitutional Court, which is a dubious situation in a civilian legal system.

Property rights and contracts are generally respected in Turkey, although the legal procedures involved can be lengthy. Judges lack training for commercial cases, which commonly drag on for more than a year as a result. On the other hand, registering a property requires six procedures and can be completed within six days.54 In some instances women encounter legal and social obstacles to owning property. Women who married before 2002, when the Civil Code was amended on the issue of joint ownership of property acquired during marriage, find themselves at a disadvantage in trying to assert possession since the revisions have not been applied retroactively.55 Non-Muslim religious communities face difficulties in owning property stemming from the fact that Turkish law does not recognize them as legal entities. Consequently their places of worship and other real estate must be owned on their behalf by community foundations. The Foundations Law passed in February 2008 allows community foundations to apply to recover seized property that is still in the hands of the state. Problematically, it does not cover property that has already been sold on to third parties. The law is being implemented – in a recent high-profile case, Turkey's Greek Orthodox Patriarchate recovered an orphanage building that the state had seized in 1997 – but slowly.56

ANTICORRUPTION AND TRANSPARENCY

Prime Minister Erdogan came to power in 2002 promising clean government, and compared to the corruption and economic mismanagement of previous administrations the AKP deserves credit for its relative honesty and efficiency. Yet despite the initial hopes of many voters that the party's conservative religious leanings would translate automatically into strong public ethics, there are signs after eight years that power is having its proverbial corrupting effects. The Transparency International 2010 Corruption Perceptions Index ranked Turkey 56 out of 178 countries, with a score of 4.4 on a 10-point scale.57

On paper, Turkey's anticorruption legislation is robust. In February 2010 the government adopted a five-year national anticorruption strategy and action plan for enhancing transparency and accountability in public administration. The law establishes a zero-tolerance policy for civil servants to accept any gifts or hospitality.58 The government has promulgated a code of ethics for investigators and auditors, and in 2009-10 some 7,000 civil servants received ethics training.59 In daily life, however, anecdotal evidence indicates that the difference between bribes and tips is blurred in the public mind, in a culture that accepts (and expects) that services should be rewarded. Even some government officials have shrugged off the practice, saying that gifts to bureaucrats averaging $15 were merely tips by grateful citizens.60 The media has reported widely on low and mid-level corruption cases involving local government and real estate agencies. In March 2010 the mayor of the provincial city of Adana was relieved of his duties following corruption allegations – the first time a serving mayor has been suspended for graft.

Nearer to the centers of power, however, the picture grows murkier. Cabinet ministers and parliamentarians are shielded from prosecution by immunity laws. Journalists are dissuaded from peering into their affairs too closely – first, because the conglomerates that control news organizations are worried about political retribution; second, because Turkey's major media assets have been steadily gathered into the hands of AKP allies (see Accountability and Public Voice). While anticorruption NGOs are allowed to operate freely, whistleblowers are poorly protected in law against recrimination or other consequences, and in any case they face an uphill struggle within a culture that frowns on airing dirty laundry in public.61 Scandals have come to light nonetheless about AKP members, most notoriously the party's deputy chairman, Saban Disli, pocketing millions thanks to favorable decisions on building permits and rezoning regulations in Istanbul, a municipality the AKP controls. Neither the individuals in question nor the party itself came under serious legal scrutiny. In 2008 the Çalik Group, a business conglomerate headed by Erdogan's son in law, took over the influential media group Sabah/ATV in an auction where it was the only bidder; there have been persistent, though unproven, claims that other potential bidders were warned off by senior government officials.

The adoption of a law on freedom of information in 2004 contributed to much wider publication and dissemination of information about the workings of government bodies. In line with that law, transparency of the state's financial activities has also improved in recent years. The information published in its budgetary statements and reports has become fuller and more detailed, and is mostly accessible to the public.62 At the same time, the country's supreme audit institution, the Turkish Court of Accounts, is under-resourced. Consequently, its independent audits of the state's books are not sufficiently comprehensive to guarantee confidence that the government's self-reporting of its revenues and expenses is totally reliable. Furthermore, the parliament's powers of oversight over budgetary expenditures are weak – for example, it lacks full authority to amend the budget over the course of the fiscal year. Elected representatives are required to file asset disclosure forms, but they are kept confidential unless there is a criminal investigation. Moreover, their declarations are not independently audited, nor is there any obligation to mention possible conflicts of interest; in fact, many Turkish politicians are involved in businesses that could conflict with their public duties.63

Turkey has a functioning market economy. The Heritage Foundation's 2010 Index of Economic Freedom gave Turkey a score of 63.8 out of 100, above the world average, noting recent improvements in fiscal and investment freedom and freedom from corruption.64 The role of private companies in Turkey has steadily increased along with progress in deregulation and privatization of state holdings in the energy sector. The legal and institutional safeguards for private companies are strong.65 Life has been made easier for businesspeople – and opportunities for foot-dragging bureaucrats to demand bribes have been reduced – by simplifying the procedures to register a company and diminishing the time required.

There are plenty of other nooks and crannies in Turkey's fiscal system where the government has not done enough to root out opportunities for corruption. Plans to unify all tax administration functions under a single revenue administration – a measure that would enhance transparency in tax collection and strengthen internal audit capacities – have yet to be completed. Tax evasion is reportedly widespread and fuelled by complaints that tax laws are not always applied fairly.66 Another source of contention is the opaque system of state aid. Competition policy is undermined and the economy distorted by government decisions that allocate money to favored economic sectors. New regulatory frameworks have, in the main, made the award of government tenders and concessions more fair and open. An independent public procurement board has the authority to void contracts. In May 2010, comprehensive guides were published on the procedures relating to supply, service, and public works contracts. Yet overall, public procurement policies are still far from coherent and subject on occasion to improper influence by the government, which cites one-time exceptions to the rule.67 In sum, while the AKP has introduced some important measures to combat corruption and increase fiscal transparency, much remains to be done.

RECOMMENDATIONS:

The Anti-Terrorism Law should be revised, and its language more restrictively defined, so that it can no longer be used as an instrument to suppress freedom of expression and imprison journalists and editors whom the government disapproves of. Article 301 of the penal code should be abolished.

Allegations of human rights violations, including police shootings and torture by security officials, must be followed by thorough and independent investigations by an independent police complaints review board or an ombudsman's office, leading to the timely prosecution of offenders.

Turkey should adopt and enforce international legal standards, such as those promoted by the United Nation's Committee on the Elimination of Racial Discrimination,68 on minority rights with a view to ensuring the equal treatment of all the country's religious, ethnic, and cultural groups.

The immunity from prosecution enjoyed by top government officials and legislators should be abolished, and transparency increased in the system of political party financing, so that corruption and other wrongdoing by politicians classes can be detected and prosecuted.

1 Previously the president was elected by the parliament and served one non-renewable seven-year term. Since the changes were made after the current incumbent, Abdullah Gül, was elected in 2007, it is unclear when the next presidential election will actually take place.

9 The crime of insulting "Turkishness" was amended to insulting "the Turkish nation," and the maximum sentence was reduced from three years to two: "Turkey: Article 301 Changes Disappointing," International PEN, April 30, 2008, http://www.internationalpen.org.uk/index.cfm?objectid=9F31B210-E0C4-ED84-0B42DAEC62341F1B; "Freedom of expression still in danger in Turkey despite article 301 reform," RSF, May 5, 2008, http://en.rsf.org/turkey-freedom-of-expression-still-in-05-05-2008,26852.html.

19 In 2009, of the 35 lawsuits filed against 431 law enforcement officers in Istanbul for torture or ill-treatment, not one resulted in a conviction, and only 2 percent of officers accused of these abuses were disciplined: European Commission, Turkey 2010 Progress Report, p. 18 (see footnote 13).

20 "Turkey: Briefing to the Committee against Torture," Amnesty International, Index: EUR 44/023/2010, October 18, 2010, p. 8, http://www.amnesty.org/en/library/info/EUR44/023/2010/en/20f6df79-3fca-4e. Examples of counter charges are "defaming the police" and "using violence or threats against public officials to prevent them from carrying out their duty": UN Committee Against Torture (UNCAT), Consideration of reports submitted by States parties under article 19 of the Convention: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Concluding observations of the Committee against Torture: Turkey (Geneva: UNCAT, CAT/C/TUR/CO/3, 2010), 6.

23 "Report to the Turkish Government on the visit to Turkey carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 26 to 27 January 2010," European Committee for the Prevention of Torture, CPT/Inf (2010) 20, July 9, 2010, http://www.cpt.coe.int/documents/tur/2010-20-inf-eng.htm.

28 European Commission, Turkey 2010 Progress Report, p. 16. Under constitutional reforms adopted in September 2010, Turkish litigants will no longer be able to file cases directly before the European Court of Human Rights before they have been heard by Turkey's Constitutional Court first.

30 "Concluding observations of the Committee on the Elimination of Discrimination against Women: Turkey," UN Committee on the Elimination of Discrimination against Women (CEDAW), August 16, 2010, 5, http://www2.ohchr.org/english/bodies/cedaw/docs/co/CEDAW-C-TUR-CO-6.pdf.

33 European Commission, Turkey 2010 Progress Report, p. 25 (see footnote 21). There are 50 women MPs in the 550-seat parliament, the largest proportion of whom are members of the pro-Kurdish Peace and Democracy (BDP), the only party with a quota for female deputies (40 percent).

34 "Concluding observations of the Committee on the Elimination of Discrimination against Women: Turkey," CEDAW, p. 8.

36 "Turkey: International Religious Freedom Report 2010," US Department of State – Bureau of Democracy, Human Rights, and Labor, November 17, 2010, http://www.state.gov/g/drl/rls/irf/2010/148991.htm.

37 In April 2009, the transgender solidarity group Lambda Istanbul won its appeal against closing the organization, but it required a four-year battle in the courts: "Turkey Urged to End Discriminatory Clampdown on Gay Rights Groups," Amnesty International, February 10, 2010, http://www.amnesty.org/en/news-and-updates/news/turkey-urged-end-discriminatory-clampdown-gay-rights-groups-20100210.

40 According to a Gallup poll, nearly half of Turkish women wear the headscarf in public, which two-thirds of the population associate with religion (but only 14 percent associate with fanaticism): Magali Rheault, "Headscarves and Secularism: Voices From Turkish Women," Gallup Center for Muslim Studies, February 8, 2008, http://www.gallup.com/poll/104257/Headscarves-Secularism-Voices-From-Turkish-Women.aspx.

52 Between 2007 and 2010, the number of Turks who had overall confidence in the military declined from 85 to 72 percent; the number who had strong positive feelings towards the military fell from 57 to 30 percent: "Turks Downbeat About Their Institutions," Pew Research Center, September 7, 2010, http://pewresearch.org/pubs/1720/poll-turkey-referendum-constitution-confidence-institutions-erdogan-negative-rating-nations.

53 The secret protocol on Security, Public Order and Assistance Units was annulled in February 2010, but the procedure to implement the decision has not been completed: European Commission, Turkey 2010 Progress Report, p. 10.

62 Turkey does not publish a Citizen's Budget or make its mid-year budget review available to the public. Extra-budgetary expenditures are not reported. The International Budget Partnership's 2010 Open Budget Index (OBI) gave Turkey a score of 57 out of 100, the equivalent of a C grade, up from 43 out of 100 in 2008: "Turkey," Open Budget Index 2010, http://internationalbudget.org/files/OBI2010-Turkey.pdf, accessed June 23, 2011.

63 Erdogan himself is a partner in companies and has established new commercial partnerships since his election in 2002, defending his business interests on the grounds that he could not make ends meet otherwise. Exceptionally, the prime minister declared his assets publicly in February 2006.

68 "Concluding observations of the Committee on the Elimination of Racial Discrimination: Turkey," United Nations: International Convention on the Elimination of all Forms of Racial Discrimination (CERD), March 24, 2009, http://www.unhcr.org/refworld/pdfid/49e5ceb72.pdf.